dissenting.
I respectfully dissent.
In argument before this court, appellants-plaintiffs did not take issue with the trial court’s findings that:
Plaintiffs herein admit that they are unable to establish the anti-competitive effect necessary to prove a violation of the Sherman Act under the rule of reason.
Battle v. Lubrizol Corporation, 513 F.Supp. 995, 998 (E.D.Mo.1981).
The trial court, however, has been reversed on a holding of this panel that there is evidence in the case which “reasonably supports an inference that Lubrizol was motivated by a desire to protect Jenkin-Guerin from price competition,” ante, at 993, thereby presumably proving a per se unreasonable restraint of trade violation of the Sherman Act. The evidence in the case which this panel concludes is sufficient to support the inference is best set out by quoting from the trial court’s opinion:
Lubrizol’s evidence in this regard has not been disputed by plaintiffs. Lubrizol never discussed with plaintiffs the price at which they should resell Lubrizol 2085A. Jeffrey Battle, in his deposition, even went so far as to state that Lubrizol told him that what he did with the product after he. acquired it was none of Lubrizol’s business, and that Lubrizol didn’t want to know what Battle charged for it. Likewise, Gordon Watson testified that Lubrizol never suggested the price at which Jenkin-Guerin should resell the product. After it refused to sell directly to plaintiffs, Lubrizol put plaintiffs in contact with its Cleveland area distributor, who now supplies plaintiffs with all the Lubrizol 2085A they desire. Plaintiffs continue to resell the product at a price lower than that offered by Jenkin-Guerin.
Against this evidence that Lubrizol was not, in fact, motivated by a desire to protect Jenkin-Guerin from price competition when allegedly agreeing with Jenkin-Guerin to terminate plaintiffs, plaintiffs’ only evidence is that Krause mentioned price when complaining to Lubrizol.
Id. at 999.
Neither the appellants nor this panel suggest that the trial court has misstated the evidence. The panel’s comments that:
Krause’s complaints clearly referred to appellants’ lower prices; Krause wanted to know whether Lubrizol would continue to sell Lubrizol 2085A to appellants. The record indicates that Jenkin-Guerin was Lubrizol’s third largest purchaser of Lubrizol during 1979 and most of 1980.
*994ante, at 993, merely enlarge the trial court’s findings without significantly changing them.
There is no suggestion from any of the parties in the case that additional evidence is available to be brought before the court. The case relates to a business arrangement that is essentially “vertical.” To hold that the facts, all undisputed, could conceivably support a finding of a per se violation seems to me to extend the per se doctrine beyond that heretofore enunciated by the courts. See White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963); Northern Pacific Railway Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); Mackey v. National Football League, 543 F.2d 606 (8th Cir. 1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1978); Butera v. Sun Oil Company, Inc., 496 F.2d 434 (1st Cir. 1974); Worthen Bank & Trust Company v. National BankAmericard Incorporated, 485 F.2d 119 (8th Cir. 1973), cert. denied, 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473 (1974).
I would affirm the decision of the district court.